Johnson v. Norris

Filing 6

RECOMMENDED DISPOSITION recommending that the District Court dismiss 2 Brandon Johnson's Petition for Writ of Habeas Corpus, with prejudice. Objections to R&R due no later than 14 days from the date you receive the Recommended Disposition. Signed by Magistrate Judge Beth Deere on 1/13/10. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION B R A N D O N JOHNSON A D C # 139905 V S. NO. 5:09-CV-00035-SWW-BD PETITIONER

L A R R Y NORRIS, Director, A r k a n s a s Department of Correction

R ESPON D EN T

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections T h e following recommended disposition has been sent to United States District J u d g e Susan Webber Wright. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n fourteen (14) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact.

Mail your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B ackground O n July 24, 2006, Petitioner Brandon Johnson pled guilty in the Circuit Court of W a s h in g to n County, Arkansas, to terroristic threatening and third degree domestic b a tte ry. Johnson v. State, No. CACR 08-9, 2008 WL 244167 at *1 (June 18, 2008). The c o u rt sentenced Petitioner to forty-eight months' probation. Id. In March 2007, officers arrested Petitioner on new charges of terroristic th re a te n in g , fleeing, and resisting arrest. In May of 2007, Petitioner pled guilty to the c h a rg e s for which he was arrested in March. Id. O n April 19, 2007, the Washington County Prosecutor petitioned to revoke P e titio n e r's probation based upon the March arrest and other alleged violations of his c o n d itio n s of probation. On September 14, 2007, three days before Petitioner's scheduled re v o c a tio n hearing, the Prosecutor filed an amended petition to revoke, adding battery and v a n d a lis m allegations arising from an alleged beating of a fellow prisoner in the local jail a s well as an allegation Petitioner had failed a drug screen. Id. A t the revocation hearing on September 17, 2007, Petitioner complained to the c o u rt that he was displeased with his counsel and wanted different counsel. After the c o u rt denied his motion for new counsel, Petitioner asked for a continuance to allow him 2

time to confer with his counsel and prepare for the revocation hearing. The court denied h is request for a continuance but allowed Petitioner some time to confer with his counsel. Id. D u rin g the recess, the Prosecutor and Petitioner's counsel realized that in plea n e g o tia tio n s they had assumed in error that the underlying domestic-battery charge was a f e lo n y when it, in fact, was a misdemeanor. The Prosecutor then extended a new plea o f f e r to Petitioner. Id. When court resumed, Petitioner's counsel requested a continuance o f a day for his client to consider the offer. Id. at *2. The court denied the request b e c a u s e witnesses had been subpoenaed and the case had been set for a considerable p e rio d of time. The court agreed, however, to another recess and granted Petitioner p e rm iss io n to call his mother to discuss the plea offer. Id. W h e n court resumed, Petitioner expressed an intent to accept the plea offer but d u rin g the change-of-plea hearing, he again asked the court for two more days to discuss th e new plea offer with his counsel. Id. The court denied the request and proceeded with th e revocation hearing. A f te r hearing the testimony at the revocation hearing, including Petitioner's te s tim o n y in his own defense, the court revoked Petitioner's probated sentence. At a later s e n te n c in g hearing, the court sentenced Petitioner to twelve months of imprisonment in th e Washington County Detention Center for the domestic battery conviction, and six

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years in the Arkansas Department of Correction, with three suspended, for the terroristic th re a te n in g conviction. Id. at *3. Petitioner appealed to the Arkansas Court of Appeals. Johnson, 2008 WL 244167 a t *1. Petitioner's sole point on appeal was that the trial court abused its discretion in d e n yin g his request for a continuance on the day of the revocation hearing. Id. at *1. Citing Arkansas Rule of Criminal Procedure 27.3, the Court of Appeals found that, b e c a u s e Petitioner's counsel was prepared for the revocation hearing and witnesses were p re s e n t to testify pursuant to subpoena, the trial court did not abuse its discretion in d e n yin g Petitioner's request for a continuance. Id. Petitioner brings the following claims in this petition for writ of habeas corpus u n d e r 28 U.S.C. § 2254: (1) actual innocence because of insufficient evidence to e s ta b lis h any inexcusable violation of his term of probation; (2) the trial court abused its d is c re tio n by denying his request for a continuance after the nature and degree of the o f f e n s e was changed; (3) denial of the right to effective assistance of trial counsel; and (4) prosecutorial misconduct for unconstitutionally failing to disclose evidence f a v o ra b le to the defense. R e sp o n d e n t argues that the first three claims are procedurally defaulted because P e titio n e r failed to exhaust the claims with the state courts. Respondent also argues that Petitioner's second claim was correctly decided by the Arkansas Court of Appeals. For

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the reasons set forth below, the Court recommends that the District Court dismiss all of P e titio n e r's claims. III. A. D is c u s s io n F a ilu r e to Grant Continuance Claim In his petition, Petitioner claims the trial court erred in denying his request for a c o n tin u a n c e , "once the nature and degree as to offense was changed." This is the same claim Petitioner raised through a complete round of the state's appellate review process. F e d e ra l habeas relief is available only on the ground that a person is in custody "in v io la tio n of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. P e titio n e r does not allege that the trial court's denial of his request for a continuance was a violation of federal or constitutional law. See Baldwin v. Reese, 541 U.S. 27, 29, 124 S .C t. 1347, 1349 (2004) (requiring that prisoners "fairly present" the federal nature of th e ir claims in each appropriate state court) (citations omitted). On direct appeal of his conviction, Petitioner cited only the Arkansas Rules of C rim in a l Procedure, Arkansas statutory and case law to support his claim. Consequently, th e state courts did not consider whether the trial court had violated any federal c o n s titu tio n a l or statutory rights by denying a continuance. Instead, the Court analyzed P e titio n e r's claim solely on the basis of the applicable Arkansas Rule of Criminal P ro c e d u re , applying the State's abuse-of-discretion standard. Johnson 2008 WL 2441367 a t *3.

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In this petition, Petitioner does not cite to any provision of the United States C o n s titu tio n or any federal law to support his claim. As part of his claim, Petitioner states th e trial court violated Article 2, section 10 of the Arkansas Constitution by giving him o n ly a brief time to decide whether to take the Prosecutor's new plea offer. (#2 at p. 7) This claim, however, does not allege a violation of the United States Constitution or f e d e ra l law in order to be cognizable under 28 U.S.C. § 2254.1 A s the United States Supreme Court stated, "[I]t is not the province of a federal h a b e a s court to reexamine state court determinations on state law questions. In c o n d u c tin g habeas review, a federal court is limited to deciding whether a conviction v io la te d the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U .S . 62, 68-69, 112 S.Ct. 475, 480 (1991). Because state law governs the claim P e titio n e r raises in his petition, this Court is bound by the Arkansas Court of Appeals' ru lin g on that issue. Maynard v. Lockhart, 981 F.2d 981, 986 (8th Cir. 1992) (citing C a r ls o n v. State, 945 F.2d 1026, 1029 (8th Cir. 1991)). B. P ro c e d u r a l Default B e f o re seeking federal habeas review, a state prisoner must first fairly present the s u b s ta n c e of each claim to each appropriate state court, thereby alerting those courts to

P e titio n e r did not argue a violation of the Arkansas Constitution at trial or on d ire c t appeal. The claim, therefore, is procedurally defaulted unless he can establish c a u s e for his default and prejudice. 6

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the federal nature of his claims and giving them an opportunity to pass upon and correct a n y constitutional errors. Baldwin v. Reese, 541 U.S. 27, 29 (2004); see 28 U.S.C. § 2254(b) and (c). "To be fairly presented `a petitioner is required to refer to a specific f e d e ra l constitutional right, a particular constitutional provision, a federal constitutional c a s e , or a state case raising a pertinent federal constitutional issue. Presenting a claim th a t is merely similar to the federal habeas claim is not sufficient to satisfy the fairly p re s e n te d requirement.'" Cox v. Burger, 398 F.3d 1025, 1031 (8th Cir. 2005) (quoting B a rr e tt v. Acevedo, 169 F.3d 1155, 1161-62 (8th Cir. 1999)). In other words, "a federal h a b e a s petitioner's claims must rely on the same factual and legal bases relied on in state c o u rt." Interiano v. Dormire, 471 F.3d 854, 856 (8th Cir. 2006) (citing Winfield v. Roper, 4 6 0 F.3d 1026, 1034 (8th Cir. 2006); Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir. 2 0 0 5 )). Claims in a federal habeas petition not presented in the state court proceedings and f o r which there is no remaining state court remedy are defaulted, and a habeas petitioner's d e f a u lt will be excused only if he can "demonstrate cause for the default and actual p re ju d ic e as a result of the alleged violation of federal law, or demonstrate that failure to c o n s id e r the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991). If no cause has been shown, th e prejudice element need not be addressed. McCleskey v. Zant, 499 U.S. 467, 502 (1 9 9 1 ).

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In his petition, Petitioner claims he is actually innocent because there was in s u f f ic ie n t evidence presented at the revocation hearing to establish a violation of the c o n d itio n s of his probation. (#2 at 5) As Respondent points out, Petitioner did not raise a sufficiency of the evidence claim with the trial court or in his direct appeal to the A rk a n sa s Court of Appeals. Accordingly, Petitioner's sufficiency of the evidence claim f a ils unless he can establish cause for the default and actual prejudice. Petitioner also claims ineffective assistance of his trial counsel. Petitioner, h o w e v e r, never brought a petition in the trial court under Arkansas Rule of Criminal P ro c e d u re 37 raising this claims. Consequently, this claim is also procedurally defaulted u n le s s Petitioner can establish cause for the default and actual prejudice. F in a lly, Petitioner claims prosecutorial misconduct because of, "the failure of the p ro s e c u to r to disclose favorable evidence." (#2 at p. 10) Again, this claim was never ra ise d in the state courts and is procedurally defaulted unless Petitioner can establish " c a u s e for the default and actual prejudice as a result of the alleged violation of federal la w , or demonstrate that failure to consider the claims will result in a fundamental m isc a rria g e of justice." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. C. C a u s e and Prejudice C a u s e for a procedural default is established when "some objective factor external to the defense impede[s] . . . efforts to comply with the State's procedural rule." Murray v . Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639 (1986). As cause for his default, Petitioner

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claims he "had no knowledge of a (post-conviction) remedy." (#2 at p. 4) Ignorance of th e law does not, however, constitute cause for default. See Williams v. Lockhart, 873 F .2 d 1129, 1130 (8th Cir. 1989), cert. denied, 493 U.S. 942 (1989). Petitioner also claims that his trial counsel failed to inform him of a postc o n v ic tio n remedy. In proceedings in which the Sixth Amendment requires legal re p re se n ta tio n , ineffective assistance of counsel can be cause for a procedural default. Murray, 477 U.S. at 488. A defendant is not, however, constitutionally entitled to e f f e c tiv e assistance of counsel in state post-conviction proceedings. See Coleman, 501 U .S . at 752. Consequently, post-conviction advice Petitioner received from his attorney o r actions taken or not taken by his attorney cannot constitute cause for a procedural d e f a u lt. See Armstrong v. Iowa, 418 F.3d 924, 927 (8th Cir. 2005) (citing Nolan v. A rm a n tr o u t, 973 F.2d 615, 617 (8th Cir. 1992)). Further, a claim of ineffective assistance must be presented to the state courts as an in d e p e n d e n t claim before it may be used to establish cause for a procedural default. B e a u lie u v. Minnesota, 583 F.3d 570, 575 (8th Cir. 2009) (quoting Taylor v. Bowersox, 3 2 9 F.3d 963, 971 (8th Cir. 2003)). In this case, Petitioner did not file a Rule 37 petition w ith the trial court alleging ineffective assistance of counsel. Accordingly, ineffective a s s is ta n c e of counsel cannot be cause for Petitioner's procedural default. Because Petitioner has not established cause for his default, the Court will not a d d re s s prejudice.

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D.

M isc a r r ia g e of Justice P e titio n e r also may overcome procedural default by showing that failure to hear his

p e titio n would result in a miscarriage of justice. To establish a miscarriage of justice, a p e titio n e r must show that, based on new evidence, a constitutional violation has resulted in the conviction of someone who is actually innocent. Cagel v. Norris, 474 F.3d 1090, 1 0 9 9 (8th Cir. 2007) (quoting Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851 (1995)). This exception is concerned only with claims of actual innocence, not legal innocence. Id. A claim of actual innocence requires that petitioner "support his allegation of c o n s titu tio n a l error with new reliable evidence. . . ." Id. (quoting Schlup v. Delo, 513 U .S . 298, 324, 115 S.Ct. 851, 865 (1995)). Actual innocence may be established by a c re d ib le declaration of guilt by another, a trustworthy eyewitness account, or exculpatory s c ie n tif ic evidence. Id. Petitioner claims "actual innocence," but this claim is based on insufficiency of the evidence supporting his conviction. Petitioner's argument relates to legal innocence, not a c tu a l innocence. Further, Petitioner has not come forward with any new evidence of a c tu a l innocence. Thus, his petition should be denied. IV. C o n c lu s io n P e titio n e r defaulted his constitutional claims by failing to raise them in the state c o u rt post-conviction and appellate processes. See Baldwin v. Reese, 541 U.S. 27, 29, 1 2 4 S.Ct. 1347, 1349 (2004) (requiring that prisoners "fairly present" the federal nature of

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their claims in each appropriate state court) (citations omitted). Accordingly, the Court re c o m m e n d s that the District Court dismiss Brandon Johnson's petition for writ of habeas c o rp u s , with prejudice. D A T E D this 13th day of January, 2010.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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